June 30, 2011

Leahy Owes Apology for Jewish Remarks

Today, the Committee for Justice sent a letter to Sen. Patrick Leahy, Chairman of the Judiciary Committee, demanding a clarification and apology for remarks he made about Jewish organizations last week, while discussing the nomination of Michael Simon to be a federal judge. Simon was later confirmed by the Senate.

The letter focuses on Sen. Leahy’s suggestion that Simon’s critics are anti-Semitic and also discusses Leahy’s reference to the ACLU as one of "several Jewish organizations." The letter concludes that Leahy’s remarks “raise questions and demand a clarification and apology.”

Full text of the letter:

June 30, 2011

The Honorable Patrick J. Leahy
437 Russell Senate Building
United States Senate
Washington, DC 20510

Re: Remarks about Jewish organizations

Dear Sen. Leahy,

While discussing the nomination of Michael Simon to the United States District Court on June 21, you made remarks about “Jewish organizations” that demand a clarification and apology. In questioning the motives of Republican Senators who opposed Simon’s confirmation, you said on the Senate floor:
"What was it Mr. Simon did wrong? He filed amicus briefs on behalf of several Jewish organizations. This is now going to be something that says you cannot be a federal judge if you filed amicus briefs on behalf of several Jewish organizations, including the first amendment on behalf of the ACLU. … That’s what they're saying. File briefs on behalf of these Jewish organizations, file briefs on behalf of religious minorities, and somehow that makes him unfit to be a federal judge?"
The truth is that none of Simon’s critics in the Senate said or suggested anything like “you cannot be a federal judge if you filed amicus briefs on behalf of several Jewish organizations.” In fact, with the exception of your remarks, no senator mentioned such briefs in any context and Mr. Simon did not disclose any such briefs to the Senate.

It appears that you were grasping at straws to suggest that Mr. Simon’s critics are anti-Semitic. As the head of an organization that has been critical of judicial nominees’ ties to the ACLU and other liberal activist groups, I find the suggestion that such critics are motivated by anti-Semitism to be offensive.

Moreover, I am concerned that your remarks, taken on their face, imply that the ACLU is one of the "several Jewish organizations.” Perhaps that is not what you meant, but I am sure you understand why Jewish Americans like me are concerned by even inadvertent suggestions that Jews control certain institutions.

In sum, your remarks about Mr. Simon raise questions and demand a clarification and apology.


Curt Levey
Executive Director
Committee for Justice


June 24, 2011

TIME: We can't let the Constitution stand in the way of all the totally awesome things us liberals want to impose on the country!

TIME Magazine:
"If the Constitution was intended to limit the federal government, it sure doesn't say so. Article I, Section 8, the longest section of the longest article of the Constitution, is a drumroll of congressional power. And it ends with the 'necessary and proper' clause, which delegates to Congress the power 'to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Limited government indeed.
We can pat ourselves on the back about the past 223 years, but we cannot let the Constitution become an obstacle to the U.S.'s moving into the future with a sensible health care system, a globalized economy, an evolving sense of civil and political rights."

Anthony Weiner's Attacks on Thomas

“Ganging Up on Justices Thomas, Scalia, and Alito,” an article by CFJ’s Curt Levey in the June issue of the American Spectator, is now available online here. The article explores the motivations behind this year’s “aggressive—and, at times, personal—attack on the … impartiality and ethics of Justices Clarence Thomas, Antonin Scalia, and … Samuel Alito.” (quoting Politico)

Levey concludes that the allegations are an attempt to intimidate the conservative Justices, delegitimize “conservative” decisions, and combat the arguments for Justice Kagan’s recusal in the ObamaCare cases. The attacks are further motivated by both heightened paranoia about the “vast right-wing conspiracy” and rage at the Citizens United campaign finance decision, the 2010 election results, and the loss of a liberal Supreme Court majority. The article notes that “even liberal legal experts have brushed off the complaints as hollow.” (quoting Politico)

The online publication of the article comes on the heels of the New York Times’ renewal of its attacks on the conservative Justices’ ethics, this time in a June 18 story questioning Clarence Thomas’s ties to real estate developer Harlan Crow. As has been typical of all the allegations, the story is heavy on insinuation but does nothing to change the conclusion that the complaints are hollow.

Another development since Levey’s Spectator article first appeared is the Anthony Weiner scandal. More than anyone else, Weiner has been the face of these ethics attacks, and his fall further undermines their legitimacy. As Levey’s article noted,
“A group of 74 House Democrats led by the always theatrical Anthony Weiner (D-NY) … [wrote] an accusatory letter asking [Justice Thomas] to ‘recuse yourself from any deliberations on the constitutionality of [Obamacare].’ … Rep. Weiner was even more brazen in explaining the letter he and colleagues wrote to Thomas: ‘If Justice Thomas does not recuse himself and the Court rules [against] the law, I will be making the point that this is not a credible decision.’ In other words, the plan is to try intimidation, and if that fails to produce a Supreme Court decision upholding Obamacare, the backup plan is to delegitimize the Court’s ruling in the eyes of the public.”
Before Weiner admitted his guilt at a June 6 news conference, several of his defenders alleged that
“Congressman Anthony Weiner was stalked, set up, smeared … this conservative media mafia has done a hit on a U.S. Congressman, and it’s one carefully timed to protect corrupt Supreme Court Justice Clarence Thomas from scrutiny” – Daily Kos blogger Daily Wind
Such is the nature of the recent ethics attacks on the conservative Justices – lots of fury and little evidence. It seems that the attacks are as much theater as Congressman’s Weiner’s proclamations of his innocence.


June 22, 2011

I Don't Think 'Moderate' Means What NYT Thinks it Means

From the New York Times editorial on the recent Supreme Court decision in the Wal-Mart class action suit.
"Justice Ruth Bader Ginsburg, writing for the four moderates on the court, dissented from Justice Scalia’s broader analysis and sought a much narrower holding."

June 20, 2011

A Case Only a San Francisco Jury Could Love

When the Supreme Court decided today that 1.5 million women who allegedly suffered gender discrimination as Wal-Mart employees did not have enough in common to sustain a class action, the Justices did not reach the merits of the discrimination claims. Back in March, when the case was argued, attorney Hans Bader examined the merits of the claims, concluding that they are as meritless as the class is massive. Bader added that
"[T]he case is being brought as a class-action not because it needs to be brought as a class action to give workers a fair shot, but rather as an excuse to let a liberal San Francisco jury hold Wal-Mart liable for discrimination when most courts in America would dismiss the lawsuit as baseless."

Wal-Mart Ruling: Blow to Judicial Activism

Statement of CFJ Executive Director Curt Levey on today’s Supreme Court decision in Wal-Mart Stores v. Dukes:

We applaud the Supreme Court’s ruling decertifying a class action lawsuit in which three named plaintiffs tried to represent a class of 1.5 million women who allegedly suffered gender discrimination while working for Wal-Mart. The decision is an important victory against the abuses of trial lawyers, a milestone in the fight against judicial activism, and good news for the economy.

While the debate over judicial activism tends to focus on dramatic expansions of the law—Roe v. Wade and decisions discovering a constitutional right to gay marriage, for example—judicial activism often occurs in small steps. The courts’ expansion of class actions from their intended use as a tool for judicial efficiency into a wide-open get-rich-quick scheme for trial attorneys is a classic example. That dangerous expansion suffered a big setback today.

Though the Court ruled that the 1.5 million women “have little in common but their sex and this lawsuit” and thus can’t pool all their claims into a single class action, the women remain free to bring both smaller class actions and individual suits against Wal-Mart. Thus, today’s decision promotes individual justice while discouraging the enormous class actions that can be used to intimidate businesses into settling meritless claims and often result in tens of millions of dollars for trial lawyers but just a few dollars, or a coupon, for the individual plaintiffs.

Whenever a Supreme Court decision is perceived to be a plus for American business, liberal critics of the Court stomp their feet and scream about the Court’s alleged pro-business bias, regardless of the legal basis for the decision. When you see that predictable reaction again today—despite a unanimous 9-0 decision in part—keep this in mind: At a time when economic growth is hampered by the perception of an anti-business bias in the executive and legislative branches—see, for example, ObamaCare’s mandates, the maze of new financial regulations, and the NLRB’s attack on Boeing—it is good news for the economy that American businesses can still get a fair shake in the courts.


June 02, 2011

Obama SG: Want to Avoid Obamacare's Mandate, Earn Less Money

Neal Kaytal, my former Criminal Law professor and current acting Obama Solicitor General, made an argument yesterday that I bet we will see walked back over the next few days. From The Washington Examiner:
During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Kaytal responded by noting that the there's a provision in the health care law that allows people to avoid the mandate.

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Hotel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”

Sutton interjected, “That wasn’t in a single speech given in Congress about this...the idea that the solution if you don’t like it is make a little less money.”